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Bench Memos

NRO’s home for judicial news and analysis.

Re: Cloture Blocked on Halligan Nomination



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According to Legal Times, Senate majority leader Harry Reid “us[ed] the 1991 confirmation vote of U.S. Supreme Court Justice Clarence Thomas as an example of why [D.C. Circuit nominee Caitlin] Halligan and every judicial nominee should get a confirmation vote without having to overcome a filibuster.”

Reid evidently has a weird sort of amnesia in which he can remember 1991 but forget the years from 2001 through 2008. As it happens, yesterday was the tenth anniversary of the Senate Democrats’ initiation of the filibuster as a partisan weapon to prevent an up-or-down vote on judicial nominees. Reid fervently supported that filibuster campaign. By my quick count, he voted against 24 cloture petitions on twelve separate federal appellate nominees, and he also voted against the cloture petition on Justice Alito’s nomination to the Supreme Court.

It’s bad enough that Reid wants to deprive Senate Republicans of the very weapon that he deployed, but it’s galling that he would try to erase his own history.

To be sure, Senate Republicans are now adopting a practice that they previously opposed. But, as I developed more fully here, the simple response to the hypocrisy charge is that the persistent Democratic resort to the filibuster dramatically altered the terrain. To maintain that some principle of consistency compels Republicans to continue to oppose the judicial filibuster after Democrats have repeatedly resorted to it is to ignore the changed circumstances and to require, as Senator Sessions aptly put it, “unilateral disarmament” on the part of Republicans.



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